Precedent of the Inter-American Court of Human Rights: State Compliance and Judicial Performance in Brazil, Colombia, Argentina, Chile, and Bolivia

1 Introduction: Influence Mechanisms of International Law

As a result of preliminary studies on the Inter-American Court of Human Rights (IACtHR),^[1] one structural problem emerged, regarding the external effects of its adjudicatory activity: In which hypotheses and circumstances is it viable to identify the nature of precedent of the Inter-American Court, as a legal landmark for the institutional branches of States Parties to the American Convention on Human Rights?^[2]

In this sense, the general typologies designed by Goodman & Jinks offer important contributions to the reformulation of the specific categories of international precedents in this research. The authors have categorized the operative mechanisms of influence of international law in any given State’s judicial practice, using three basic categories:^[3]

1. material induction;

2. persuasion;

3. acculturation.

Under (a) material induction, it is possible to identify processes by which the subjects’ behavior takes into account material costs of non-compliance and benefits of compliance, based on the assessment of punishments and rewards.^[4]

On the other hand, (b) the mechanism of persuasion involves processes in which the subjects are convinced to change their original position by means of the adjustment to the content of a norm, belief or practice while internalizing new norms or rules that modify their interests or identities.^[5] This social learning process may operate by framing, when the assumption of new contents is structured around:^[6]

1. central beliefs, values, or ideas associated with the target message;

2. congruence of the message with the actual goal connected to the experience;

3. narrative fidelity as a result of the message’s connection to the ideologies and fundamental assumptions weaved into the social context.

Another form of persuasion can be found in the suggested inclusion of information and data (cuing), leading to a reassessment of original opinions through an intense process of cognition, reflection, and argument. As a consequence, it would tend to overcome resistance from the status quo.^[7]

Lastly, the third mechanism of social influence is characterized by (c) the process of acculturation, which induces behavioral modifications through points of pressure directed to the subject’s behavioral compliance according to an expected pattern. If, on the one hand, the persuasion concentrates on the content of a norm that causes changes, on the other, the acculturation emphasizes the relationship of the subject with a reference group or a wider cultural environment.^[8]

In direct connection with this theoretical basis, it is important to highlight an operative genus called acculturative process, in which we can find a variety of networks, having in common the intercultural transmission that transfers cultural materials – eg, objects, traits, ideas – between two systems.^[9] Even if the acculturative conception involves significant, individual, and psychological aspects, its use proves appropriate to analyze large cultural groups, in order to investigate changes in social, institutional, and legal structures.^[10]

Despite several similarities between the mechanisms of persuasion and acculturation, some distinctions merit special attention:^[11]

1. persuasion requires complete internalization of the new norm, whereas acculturation can happen through incomplete internalization;

2. persuasion follows the explicit content of the message, whereas acculturation usually operates tacitly, based on the function of the respective social structure;

3. acculturation is less connected to the norm and more to the social relationship maintained with the community.

When combined with dynamics of the State learning addressed to the change of some practices, the acculturative mechanism may have perceptible outcomes. For instance, after the ratification of a human rights treaty, due to the dialogical interaction between the State and the international institutions supervising the compliance with obligations established by the treaty.^[12]

An important example of acculturation may be seen in the current process of implementation of the Colombian Special Jurisdiction for Peace – Jurisdicción Especial para la Paz –,^[13] based on Inter-American Court’s precedents on Transitional Justice, especially the case of Massacres of El Mozote.^[14]

Clearly linked to acculturative processes, the ‘macro-phenomenon’ of international socialization has come to play a notorious role in the compliance and internal assimilation of international law. This is clear throughout the work of global and regional international institutions such as the United Nations, the World Trade Organization, the Organization of American States, and the European Communities.^[15]

Nevertheless, acculturation may not entirely account for the compliance with international obligations by the Member States of international organizations. This is empirically proven by the incomplete absorption of international guidelines by national judiciary branches.

In this sense, highly variable degrees of internalization of international human rights norms, along with the theoretical framework of operative mechanisms of influence, seem to be appropriate foundations for the analysis of the unbalanced implementation of Inter-American precedents by States.

To these concepts, we may add other variables to help us analyze the inductive, persuasive, or acculturative power of Inter-American precedent over States’ judiciary.^[16] Adding these variables will help expand the static, binary categories of binding and persuasive precedents in favor of a wider, more analytical perspective.

2 Typologies of Inter-American Precedents

From a macro-analytical point of view, the assimilation of international legal obligations produced by the IACtHR, in the course of its adjudicatory activity, will observe the behavior of the States Parties to the American Convention on Human Rights regarding their respective compliance and effective implementation.

Moreover, explicit references made by constitutional or supreme courts of States to Inter-American precedents show an interesting perspective, based on different operative mechanisms of influence.

In a thought-provoking paper on the internalization of international protective norms of women’s rights, Darren Rosenblum conducted an important comparative analysis between the behavior of France and Brazil,^[17] in order to measure the degree of national implementation of Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).^[18]

To achieve this goal, the author supplemented the theoretical acculturative perspective of Goodman & Jinks^[19] with the concept of selective adaptation provided by Pitman Potter.^[20] This notion is based on the premise that the legal preferences of governments and elites emerge through processes of rule interpretation and application, focusing on the exchange of norms and practices among distinctive cultural communities.

According to Potter,^[21] selective adaptation can operate based on some levels, such as:

1. internal perception of the viable meanings of the norm of international law;

2. complementarity with the existent national legal system;

3. legitimacy of the purpose of nonlocal norms and their consequences in the eyes of local community members.

Due to the reasons explained above, I have chosen to merge the classic categories of precedents (binding and persuasive), the theoretical basis of the social mechanisms of influence defended by Goodman & Jinks, and Potter’s concept of selective adaptation.

In this sense, it was possible to create the following categories a priori applicable to the Inter-American precedent:

1. binding precedents: providing legal arguments (ratio), which immediately bind the States Parties under the jurisdiction of the international court (structural aggregation);

2. persuasive precedents (lato sensu): providing nonbinding legal arguments (ratio), which influence the States Parties under the jurisdiction of the international court. These precedents may be subdivided into:

   1. acculturative persuasive precedents: characterized by the recognition of the distinctive institutional position of the international court or the Inter-American System of Protection, in order to demonstrate the broader potential of diversity and intensity of the assimilation of legal contents (broad aggregation);

   2. selective persuasive precedents: characterized by the referential nature of legal contents selectively and specifically assimilated, according to a strict range of themes and arguments, through choices operated by national courts (elective aggregation).

In a comparative view, while the binding precedent shows its authoritative nature directly applied to national branches (mandatory premise), the acculturative persuasive precedent is based on the influential perspective, in that it creates an interpretative reserve of attribution, which shall be institutionally consistent with the differentiated position of the IACtHR.

Finally, the selective persuasive precedent seems closer to an argumentative use of Inter-American judgments and advisory opinions chosen à la carte by the State’s interpretative branches following specific or situational interests.

Based on this theoretical framework, the classification above is highly fluid, but useful as a testing tool of the tendencies of constitutional courts or supreme tribunals, since they have explicitly adopted legal postulates extracted from Inter-American precedents under the argumentative status of rationes decidendi.

At this point, quantitative data reveals these variable tendencies in a comparative perspective applied to the decision-making patterns of the States Parties analyzed.

Preliminarily, a brief analysis of the phenomenon of conventionality control seems to offer a better comprehension of the dynamic communication of precedents within the Inter-American system.

3 Inter-American Model of Conventionality Control

In order to distinguish the Inter-American control of conventionality from the original French mechanism, it is fundamental to identify some essential elements in its historical formation. In that case, these factors can show relevant reverberations for justifying distinct levels of acceptance of the international law by national judicial branches.

It seems that general guiding principles of international law, such as good faith and pacta sunt servanda, were the starting point of the interpretation established by the original French case law on the contrôle de conventionnalité des lois,^[22] based on the judgment in the case Interruption Volontaire de Grossesse (IVG) by the Constitutional Council in January 1975, when the debate was centered around the prevalence of treaties on human rights in contrast with the national law on the voluntary interruption of pregnancy.^[23]

Following this constitutional precedent, the French Cour de Cassation judged the case Société des Cafés Jacques Vabre in May 1975, where it discussed the compatibility between confronting dispositions of the French Customs Code and the Treaty Establishing the European Economic Community, in order to concretely implement the conventionality control,^[24] under the inspiration of the Article 55 of the Constitution.^[25]

Considering the co-existence of judicial and administrative judges in France, which have held, historically, independent jurisdictions,^[26] in 1989 the Conseil d’État decided, in the case Nicolo, in favor of the applicability of the mechanism of control of conventionality by the decentralized administrative branches.^[27]

Until 2008, the boundaries between the mechanisms of control of constitutionality and conventionality seemed easily identifiable in the French legal system. In that context, some essential distinctions were notorious:^[28]

1. the constitutionality control was conducted through autonomous legal action, under the initiative of certain political authorities, as a response to any law that seemed to defy the Constitution (a priori, abstract control);

2. the conventionality control was an exception, inaugurated by the initiative of any person during administrative or judicial proceedings, in order to submit to the judge reasons opposing the application of any national law that seemed to defy a treaty (a posteriori, concrete control).

Nonetheless, the Constitutional Reform of 2008 partially adopted the suggestions produced by the preparatory Comité Balladur, created to draft proposals to change the constitutional text.^[29] In July of the same year, a new text was officially included in the French Constitution (Article 61.1), introducing a novel mechanism which allowed access to the Constitutional Council through the procedural remedy named ‘Priority Question of Constitutionality’ – Question Prioritaire de Constitutionnalité –, which may be filed when a legislative ruling constitutes a threat to rights and liberties guaranteed by the Constitution.

Since then, the double protection provided by mechanisms of control of constitutionality and conventionality has irremediably merged in certain circumstances in the French legal system. This phenomenon has had the effect of concentrating the whole control system in one hypothetical supreme court, even when considering the formal superiority of constitutional norms reinforced by the Reform.^[30]

We may glean some interesting aspects from this short historical incursion on the French control of conventionality, such as:

1. it finds its formal historical origin in the national legal system;

2. its close connection with the issues of international law and European Community law may be analyzed through the lens of national law;

3. it works inside out, in order to sustain the hierarchical perspective of constitutional law.

These aspects largely differ from the essential characteristics of the homonym mechanism developed within the Inter-American system of human rights.

Despite the adoption of the term control de convencionalidad, as early as 2003 by Judge García Ramírez in his separate opinion during the judgment Myrna Mack Chang v Guatemala,^[31] this legal concept was first adopted as a collegiate precedent in the IACtHR^[32] in Almonacid Arellano et al v Chile (2006).^[33]

In this decision, the Inter-American Court established that when a State ratifies a treaty such as the Pact of San José, national judges, as part of the State’s functional apparatus, are also submitted to its legal content. This joint obligation should lead them to decide in favor of the American Convention on Human Rights, upholding its legal efficacy even when the applicable national laws seem incompatible with the Treaty’s object and purpose.

In sequence, the IACtHR clarified that the national judiciary as a whole has the attribution to perform a type of control of conventionality between domestic norms applicable to concrete cases and the American Convention, taking into account not only the literal text of the Treaty, but also its interpretation given by the Inter-American Court, upholding its legitimacy as the final interpreter of the Pact of San José.^[34]

In Dismissed Congressional Employees v Peru,^[35] we could witness the first wave of expansion of the Inter-American mechanism. It materialized as a specification added to the conventionality control to admit initiatives by any national judge, with or without the request of a litigant within the judicial process.^[36]

In this sense, the traditional judicial review usually performed by the judiciary was improved by the American Convention’s criteria for analysis, which created a mandatory double-check mechanism applicable to every domestic law by national judges, based on both constitutional and conventional standards.^[37]

Depending on each State’s judicial structure, whenever constitutional control is an attribution of local judges, they shall also apply the conventionality test to national laws in cases submitted to their jurisdiction.^[38]

Here, emerges the second wave of expansion of conventionality control. It arises via the understanding advanced by the IACtHR in Cabrera García and Montiel Flores v Mexico,^[39] based on the explicit guideline upheld by the Court, in favor of the recognition of the immanent competence of all State organs to apply the diffuse control of conventionality, including judges and all public branches dedicated to the administration of the justice.

Soon after, the Inter-American Court admitted that every national public authority has the legal duty to apply a diffuse conventionality control within its functional and deliberative attributions, regardless of their hierarchical position in the State organization, as defined in Gelman v Uruguay,^[40] followed by other decisions.^[41]

According to Castilla Juárez,^[42] there is an important distinction between authentic control of conventionality, concerning the general competence of international courts to ensure a given treaty’s integrity and compliance, and the Inter-American control of conventionality, which is directly performed by the branches of each State Party.

In contrast with the French model analyzed above, it has been possible to classify the relatively short historical consolidation of Inter-American conventionality control after 2006 as an outside-in dynamic, inasmuch as the formation of the IACtHR standards seems not to be aggregated by substantive contributions from national precedents.

Contrary to the European Court of Human Rights’ case law, the Inter-American Court tends to reject the systematic, comprehensive use of the margin of appreciation paradigm,^[43] in order to adopt the conventionality control as a legal mechanism to restrict the excessively open possibility of national branches to interpret and construct the American Convention according to diverse normative understandings.^[44]

In this sense, the self-recognition of the IACtHR as ‘the final interpreter’ of the Pact of San José has exposed its innate perspective of supremacy,^[45] far from the idea of horizontal dialogues among equidistant institutions.^[46]

However, there are some perceptible movements in the IACtHR case law in favor of admitting an implicit type of margin of appreciation related to the diffuse conventionality control by national organs. Simultaneously, the negative subsidiarity criterion to block the international review has been applied in certain cases of human rights’ violations, especially when the respective treatment by the State was considered appropriate and sufficient.^[47]

Another aspect that deserves attention in the Inter-American mechanism is the tendency to favor a progressive interpretation of human rights treaties. This propensity is supported by the doctrine constructed under the inspiration of the IACtHR case law.

Some authors defend that the latest expansion of conventionality control has been marked by the recognition of the Inter-American legal regime of human rights as an emanatory normative center, which may condition the content of national constitutions.^[48]

This highly progressive wave has been identified in IACtHR judgments such as The Last Temptation of Christ v Chile (2001), and Boyce et al v Barbados (2007),^[49] followed by changes in the respective Chilean and Barbadian Constitutions through an apparent movement of State compliance.

Recognizing the general commitment to respect human rights included in treaties, Eduardo Ferrer Mac-Gregor^[50] admits the existence of a kind of conventional supremacy. This term consists in the supervision and control of adjudicatory decisions by international institutions. As an example, we have regional courts of human rights, which have had a strong, distinctive impact on national legal systems. In this sense, the Pact of San José would be granted a superior legal prevalence over domestic norms, including national constitutions, following the evolving nature of the Inter-American case law.^[51]

Even though this argument may seem to strongly support the theoretical premise of a constitutional or even super-constitutional nature of the American Convention on Human Rights, the postulate of the Inter-American adjudicative supremacy has not been universally adopted by States Parties’ judicial systems.

Furthermore, a general norm of international law, or even a specific conventional rule, able to sustain that explicit case law premises arising from the IACtHR’s adjudicative function must be directly implemented by States does not exist. A quantum leap^[52] would be necessary to recognize that the national legal systems and States’ judiciary decisions are directly and uniformly affected by the Inter-American precedent.

To better understand this contradictory relationship between legal literature and empirical data, quantitative research may provide critical analytical elements, as the next section will show.

4 Quantitative Analysis: Double Control of Conventionality

This section is dedicated to measure the application of Inter-American precedent, in the light of the double control of conventionality. This measurement is conducted by checking both States’ compliance with IACtHR judgments and the use of the Inter-American precedent by national courts.

Therefore, I adopt here the categorization of Inter-American control of conventionality designed by Castilla Juárez,^[53] according to which the States Parties apply the American Convention in two distinctive, but complementary, fundamental ways:

1. compliance with IACtHR judgments, specifically directed to the demanding State eventually condemned;

2. interpretation and application of national laws which were previously deemed compatible, or not, with the Pact of San José.

In this sense, I gathered a significant amount of quantitative data. This has allowed me to make reliable inferences,^[54] while not forgetting the significant correlation between sample size and statistical accuracy for the comprehension of the phenomenon.^[55]

5 Analyzing Quantitative Data

6 Conclusions

During this research, the dichotomy between binding and persuasive precedents seemed inappropriate to the matter at hand, especially considering the lack of concrete identification of a binding precedent (structural aggregation) within the Inter-American human rights system.

The absence of a general or specific assumption of the stare decisis principle causes important difficulties for a sustainable qualification of the IACtHR precedent as authoritative case law, at least for the analyzed samples.

In this sense, the theoretical perspective defended by Ryan Goodman and Derek Jinks provides a typological complement to the analysis through the subdivision of the category persuasive precedent in subtypes acculturative persuasive precedent (broad aggregation), as the precursor of the structural modification of the national legal culture, and selective persuasive precedent (elective aggregation), characterized by the selection and specificity of its adoption by national decision-makers.

From a historical point of view, establishing structural distinctions between French and Inter-American mechanisms of control of conventionality was fundamental to shifting the analytical paradigm for the problem. In spite of some recognized evidences of qualitative dialogues between the IACtHR and States, the perspective of Inter-American supremacy (‘final interpreter’) and the unsystematic use of the margin of appreciation paradigm revealed the need to seek different quantitative evaluations. Therefore, based on Inter-American precedents, the problem was analyzed through the lens of national assimilation of Inter-American advisory opinions and decisions.

Even when the impact of some IACtHR precedents on certain national case law was identified, this phenomenon did not seem to produce general, uniform repercussions. In this regard, important differences were brought to light in the comparative perspective between sample States.

In order to better understand the behavior of States, this research counted instances of compliance with Inter-American judgments through the lens of conventionality control. It did not, however, overlook the risk of a paradoxical situation where there could be a few States highly noncompliant, along with disproportional levels of assimilation of Inter-American precedents by the respective national courts.

Actually, the data revealed a certain correlation between the implementation of Inter-American decisions by demanding States and the adoption of IACtHR precedents by national judicial branches. In other words, the high level of non-compliance with international obligations established by the IACtHR is frequently echoed by low argumentative use of Inter-American precedents by supreme and constitutional courts (as rationes decidendi).

As an illustration, Brazil shows 100 % of all general international obligations and about 70 % of individual ones as pending, and also the lowest argumentative use of Inter-American precedents by its Supreme Court. On the contrary, Colombia’s highest performance seems notorious in the argumentative adoption of IACtHR precedents by the Constitutional Court, along with the more balanced implementation of international obligations derived from the Inter-American Court judgments, especially general ones (over 40 %).

Based on the comparative analysis of a large data survey, combined with the proposed typology of Inter-American precedents (binding, acculturative persuasive, and selective persuasive), it was possible to categorize sampled States thus:

1. Brazil: selective persuasive IACtHR precedent with low performance;

2. Colombia: acculturative persuasive IACtHR precedent with high performance;

3. Argentina: selective persuasive IACtHR precedent with moderate performance;

4. Chile: selective persuasive IACtHR precedent with high performance;

5. Bolivia: acculturative persuasive IACtHR precedent with moderate performance.

Considering the collected data, it was not possible to identify a case of a State Party whose adoption of precedents allows to classify it in the binding precedent category. Of course, this only includes the five sampled States and does not extend to all States Parties to the American Convention on Human Rights. This is mentioned without neglecting the relevant obstacles to the general acceptance of the stare decisis principle by the international human rights law and international law in general.^[90]

Contradicting the position of part of public law literature,^[91] for whom it is not a fantasy to consider the Inter-American Court of Human Rights a kind of constitutional court, the analyzed data in this research has shown highly varied assimilation of IACtHR precedents by States according to the scheme of double control of conventionality.

In this regard, significant misalignment and disagreement were identified in the decision-making behavior of the highest national courts, especially related to the legal postulates outlined by the IACtHR in its judgments and advisory opinions.

Back to the problem originally proposed, it must be said that the answer to the question about the application of Inter-American precedent – and its extent – will vary case by case, according to the respective degree of recognition, assimilation, and resistance by institutional structures of each State Party to the Pact of San José. In this sense, national judicial branches perform a relevant role, with special attention to the decisions by highest courts that have been based on IACtHR legal standards.

In summary, I hope that the analysis of the repercussions of IACtHR precedents within the States Parties to the American Convention on Human Rights has been able to clarify this phenomenon a little further, while also shedding light on a relatively new empirical typology, which may be useful for future researches.